31 March 2026 – ELRC722-25/26GP

IN THE EDUCATION LABOUR RELATIONS COUNCIL
HELD ONLINE
Case No: ELRC 722-25/26GP

In the matter between:

PAULINA MOTHEPANE MOKHATLA Applicant

and

DEPARTMENT OF HIGHER EDUCATION AND TRAINING:
DHET: WESTERN TVET COLLEGE: RANDFONTEIN. Respondent

ARBITRATOR: NATHALIE CHRISTOFFELS-WILLEMSE

HEARD: 23 March 2026
FINALISED: 23 March 2026
DELIVERED: 31 March 2026

ARBITRATION AWARD

Details of hearing and representation

This is an arbitration award for the matter between employee, PAULINA MOTHEPANE MOKHATLA (hereinafter referred to as the Applicant) and employer, GAUTENG DEPARTMENT OF HIGHER EDUCATION AND TRAINING: DHET: WESTERN TVET COLLEGE, RANDFONTEIN, GAUTENG. (Hereinafter referred to as the Respondent).
The arbitration took place on 23 March 2026 virtually via MS Teams.
The applicant was present and unrepresented. The respondent was represented by Mr. A. Maseko, the Senior Labour Relations Officer.
The proceedings were conducted in English. The applicant made use of an interpreter in Sesotho. The matter followed an inquisitorial approach.
The hearing was digitally recorded, and summarized manual notes were also taken.
Both parties prepared paginated and indexed bundle of documents. The applicant’s bundle was marked “A1-16” with a WhatsApp audio recording. Bundle “R1-12” was used for the respondent. As regards the status of the documents, the parties agreed that the documents were what they purported to be, however, they reserved the right to challenge its contents.
At the start of the sitting, parties were explained the arbitration process as well as assisted in respect of narrowing the issues. Parties were also cautioned in respect of their evidentiary burden and onus in line with the narrowed issues and provisions of the Labour Relations Act 66 of 1995 (as amended) (hereinafter referred to as the LRA).

The issue’s to be decided:

The purpose of this arbitration is to determine:
a) whether the Applicant was dismissed on 31 December 2024 in terms of the provisions of section 186(1)(b) of the Act;
b) The crucial questions are whether the applicant subjectively had a reasonable expectation that the respondent would extend/renew a fixed term contract and
c) Whether there was an objective basis for such an expectation, created by the respondent.
d) In the event that, it was so found that the applicant was dismissed then, I am required to grant appropriate relief in accordance with the provisions of the Act.
The background to the dispute
It was common cause that the applicant was employed by the respondent on two fixed-term contracts, effective: 14 April 2024 to 30 June 2024 and 15 July 2024 to 31 December 2024.
The applicant was appointed on a temporary post level 1 (PL1) Lecturer position commencing on 14 April 2024 and expiring on 31 December 2024. The applicant earned a basic salary of R30 600.00 per month.
The applicant was notified of the expiry date of her contract. The respondent advised her that alternative positions will be advertised in January 2025. It was common cause that the applicant applied for several positions and participated in competitive recruitment for the vacancies, however a regret letter was issued to the applicant on 4 June 2025.
The respondent placed the existence of the dismissal in dispute and ultimately argued that the Council lacked jurisdiction as there was no dismissal. The termination came about the effluxion of time. The applicant was employed on a fixed-term contract form 15 July 2024 to 31 December 2024. There was no employment relationship in 2025.
The applicant referred an alleged unfair dismissal dispute. She confirmed the fixed-term contract expired but argued that she had an expectation that the contract would be renewed. The applicant sought reinstatement.

Summary of evidence and argument
The testimony led by the witnesses’ are fully captured on the recording of the proceedings. What follows is a summary of the material and relevant issues I must determine.

Applicant’s Evidence:
The Applicant testified on behalf of her case. She testified under oath, and I summarized her evidence as follows:

Ms. Paulina Mothepane Mokhatla testified: There are two fixed-term contracts that were offered to her and signed by her from 14 April 2024 to 30 June 2024. She accepted it was a temporary PL1 lecturer position. Thereafter, she was offered a second fixed-term contract dated 15 July 2024 to 31 December 2024.
She testified that her contract came to an end on 31 December 2024, which she understood and accepted. On 28 January 2025, the senior lecturer advised her that there were three vacancies that would be advertised and she should apply.
She applied, she was shortlisted and invited to an interview. On 27 May 2025 she was made aware of appointment letters issued to others excluding her. She immediately communicated with the senior lecturer who explained to her that three candidates were recommended for the post, and she was one of them. Thereafter, she received a voice recording from the senior lecturer explaining that due to previous contracts they would be in breach of the law if they offered a third contract.
Under cross-examination, the Applicant conceded that her fixed-term contract ended on 31 December 2024 and that the employment relationship accordingly terminated on that date.
She further conceded that she applied for the advertised posts, participated in a competitive recruitment process, and was ultimately unsuccessful.
The Applicant agreed that the senior lecturer did not have the authority to appoint candidates and that any statements made by the senior lecturer, including the voice recording, constituted hearsay.
The Applicant confirmed that she received a regret letter and did not request reasons for her non-appointment, despite being afforded the opportunity to do so within 90 days.
She accepted that participation in an interview does not guarantee appointment and testified that she referred the dispute due to her non-appointment. She further conceded that she was not dismissed, and that her contract had simply come to an end.
No material contradictions emerged during cross-examination, and no re-examination was conducted.
The Applicant thereafter closed her case.

Respondent’s Evidence:
One witness testified in support of the Respondent’s claim.

Mr. Peter Motai testified: He is he Chief HR Officer for the Western TVET College. His responsibilities include recruitment, terminations, leave management, and supervision of HR staff.
He provided detailed evidence on the recruitment process, explaining that the appointing authority for PL1 to PL3 positions is the Principal, as the accounting officer of the college. He confirmed that the Applicant was appointed on a temporary fixed-term contract from July 2024 to 31 December 2024, as reflected in her appointment letter signed by the Principal.
Mr. Motai testified that the Respondent advertised three vacancies, for which the Applicant applied as an external candidate. She was shortlisted and participated in the recruitment process but was ultimately unsuccessful and issued with a regret letter on 4 June 2025. He noted that the Applicant did not request reasons for her non-appointment.
It was his evidence that the Applicant was not dismissed, as her fixed-term contract expired on 31 December 2024, bringing the employment relationship to an end.
Under cross-examination, Mr. Motai explained that even where a candidate is recommended by a selection panel, the final decision to appoint rests with the Principal. He disputed the version attributed to the senior lecturer and testified that it would be irregular for a panel member to have authority to appoint candidates. The panel’s role is limited to making recommendations.
The Respondent closed its case.

Analysis of evidence and argument:

The jurisprudence (law) on the test for determining whether a reasonable expectation of renewal of a fixed term contract has been established by an employee, stems from the decision in Member of the Executive Council for the Department of Finance Eastern Cape v De Milander & Others (2011) 32 ILJ 2521 (LC). That decision summarised the approach adopted: “The onus to prove that the dismissal occurred in circumstances where the employee had a reasonable expectation that the fixed-term contract would be renewed at the end of its period rests with the employee. A dual enquiry is conducted in determining the existence of reasonable expectation. The first enquiry is subjective and entails enquiring into the subjective basis upon which the person who claims reasonable expectation relies in contending that his or her contract ought to have been renewed. The enquiry into reasonable expectation ends if the employee fails to show that he or she had the expectation that the period of the fixed-term contract would be extended. If the employee is successful in showing that he or she had a subjective expectation that the contract would be renewed, then the second enquiry entails determining the existence of such an expectation on the basis of the objective facts that existed prior to the termination of the contract”.
Therefore, I am first required to determine if the applicant party, subjectively or personally, had an expectation. Thereafter, I would need to determine if that expectation was reasonable, objective to the facts.
This test was emphasized in the Labour Appeal Court SA Rugby judgment by Tlaletsi JA summarizes the meaning of s 186(1)(b) of the LRA as follows at para 43: ‘What s 186(1)(b) provides for is that there would be a dismissal in circumstances where an employee reasonably expected the employer to renew a fixed-term contract of employment on the same or similar terms but the employer only offered to renew it on less favourable terms or did not renew it. The operative terms in s 186(1)(b) are, in my view, that H the employee should have a reasonable expectation, and the employer fails to renew a fixed-term contract or renews it on less favourable terms. The fixed-term contract should also be capable of renewal.’
The onus to prove that there has been a dismissal rests on the Applicant. Section 192(1) of the LRA states that:
‘In any proceedings concerning any dismissal, the employee must establish the existence of a dismissal. The next inquiry then for the Second Respondent to determine was whether on the facts that were placed before him and considered objectively if it has been established that the Applicant held a reasonable expectation that his contract will be renewed .’
Subjective test:
It is trite that the onus rests on the applicant to prove, on a balance of probabilities, that a dismissal occurred. Only once the existence of a dismissal is established does the Council acquire jurisdiction to determine the fairness thereof.
In assessing whether a dismissal occurred, the totality of the circumstances must be considered, including the conduct of the parties and whether the employment relationship was terminated by the employer, or whether the employee terminated the relationship.
On the evidence before me, the applicant failed to discharge the onus of proving that the respondent terminated the employment relationship.
As a starting point, it is necessary to determine when the alleged expectation arose and what gave rise to such expectation.
The applicant conceded that her fixed-term contract expired on 31 December 2024. At that stage, she did not dispute the termination or assert any right to continued employment. This is indicative that no expectation of continued employment existed at the time of expiry.
The applicant’s alleged expectation appears to stem from statements purportedly made by a senior lecturer. However, this evidence amounts to hearsay. The applicant failed to call the senior lecturer to testify and corroborate her version.
Although the applicant relied on an audio recording of a conversation with the senior lecturer, this evidence likewise constitutes hearsay and carries limited probative value. In the absence of corroborating evidence, it cannot sustain the applicant’s version.
In the circumstances, the applicant has failed to establish a subjective expectation of renewal that is supported by admissible and reliable evidence.
In any event, the applicant’s version falls to be rejected. The respondent led clear and undisputed evidence regarding the recruitment process, namely that any recommendation by a senior lecturer is not binding and that the ultimate appointment rests with the accounting officer (the Principal). Accordingly, even if such representations were made, they could not reasonably give rise to an expectation of renewal, as they did not emanate from a person with the requisite authority to make or guarantee such an appointment.
In Joseph v University of Limpopo & others (2011) 32 ILJ 2085 (LAC) the LAC stated: The onus is on an employee to prove the existence of a reasonable or legitimate expectation. He or she does so by placing evidence before an arbitrator that there are circumstances which justify such an expectation.
A legitimate expectation “arises where a person responsible for taking a decision has induced in someone who may be affected by the decision, a reasonable expectation that he will receive or attain a benefit or that he will be granted a hearing before the decision is taken”. De Smith, Woolf and Jowell Judicial Review of Administrative Action 5th ed at 417, para 8- 037.
Consequently, I find that the applicant failed to establish, on a subjective basis, that she held a reasonable expectation of renewal of her contract of employment. Her reliance on hearsay evidence is misplaced, and she conceded that her contract terminated on 31 December 2024 without asserting any expectation of continued employment at that time.
I accordingly make the following Award:

Award

I therefore find that the Applicant, PAULINA MOTHEPANE MOKHATLA, was not dismissed by the Respondent, DEPARTMENT OF HIGHER EDUCATION AND TRAINING: DHET: WESTERN TVET COLLEGE: RANDFONTEIN GAUTENG.
The ELRC lacks jurisdiction, because there was no dismissal.

Thus, signed and dated on 31 March 2026.